Saturday, Jun. 15, 2024

Changes In H-2B Foreign Worker Program Could Affect Horse Businesses

On Nov. 30, the U.S. Department of Labor plans to adopt two new rules regarding the H-2B Foreign Worker Program regarding prevailing wages and hire dates. Businesses within the horse industry will likely be affected by these changes.

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On Nov. 30, the U.S. Department of Labor plans to adopt two new rules regarding the H-2B Foreign Worker Program regarding prevailing wages and hire dates. Businesses within the horse industry will likely be affected by these changes.

The program was set up to allow employers to hire workers from other countries for positions that U.S. workers won’t take. In order for employers to hire H-2B workers, they must obtain DOL certification, which cites that U.S. citizens aren’t available for the positions and that hiring the guest workers won’t negatively affect working wages or environment for U.S. workers.

Previously, the wages paid to H-2B workers have been based on a four-tier system (starting with little to no experience at level 1 to advanced at level 4) directly correlating with the amount of experience, or skill level, an individual has in the particular field.

One of the rule changes will alter the prevailing wage paid to H-2B workers, because the DOL will now create a set wage that must be paid to any H-2B worker doing a certain job, regardless of years of experience.

“The way it used to work was that for every county, there was a survey done for every profession, and within that professional classification, you’d have your levels of wages,” explained William Velie, an immigration attorney in Norman, Okla., who has many clients in the Thoroughbred racing industry.

“What they’ve done now is they’ve averaged [the four-tier wages] together. For example, when we run an ad for one of our clients—for a groom—we require no experience because we truly do want Americans first. And we’ll hire anyone that comes forward. But if an American doesn’t come forward, that’s where we get the spots [for H-2B workers].

“And when we require no experience, we set it at the level 1, which is usually between $8.50 and $9 an hour,” he continued. “But when they average the four together, it raises the wage considerably. I think some of the wages we were getting back were $16, $17 an hour.”

The wage changes will affect wages paid to all employees and will mean employers must budget more to pay their employees.

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“If you’re taking part in the H-2B program, and you’re paying your H-2B workers $15 an hour because that’s the new wage, then you have to pay all of your American workers in the same classification the same wage,” said Velie. “So you’re essentially giving everybody a 50 percent raise.”

Another change to the program will mean that if a U.S. worker applies for a position for which you’ve already hired an H-2B worker who hasn’t arrived yet, the employer must give that position to the U.S. worker—up to three days before the H-2B worker’s first day on the job.

“[With the old system], once you were approved, you were approved. There wasn’t a cut-off date,” explained Velie. “Now, let’s say you get approved in April, but the consulate in Mexico is slow, and your workers don’t get up here until the middle of May, and you spend the money to get their visas, to bring them here, but before they get here, [a U.S. worker] comes and says they want the job. Then you have to send [the H-2B worker] back home. It adds a lot of unknown to the process.”

Congressman Rodney Alexander, a Republican from Louisiana, introduced H.R. 3162, a bill that prohibits the DOL from altering the current H-2B rules.

“The horsemen aren’t doing this as a dodge from hiring Americans. They want to hire Americans. It’s difficult to bring somebody from out of the country. There are Americans that want to do [this type of work], there just aren’t enough,” said Velie.

Velie believes that H-2B workers are also concerned about the proposed changes.

“I completely support protecting workers’ rights and American wages. I think that everybody would like to get paid more money, but I think that most of the workers just want consistency—to know that they’re going to be able to get this visa every year,” he said.

Once approved, an H-2B worker can come to the United States and work the job for 10 months. Then they must return to their home country, but often they continue the professional relationship with the employer and come back to work each year.

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“There have been so many fluctuations in the visa regulations in the last five years that visas just aren’t being approved recently,” Velie said, mentioning that in January of 2009, the program was taken out of state governments’ hands and moved to the federal government. “So I think with most workers, they want to count on those nine or 10 months that they’re going to get to come to the U.S., make money and send it back home.”

Employers worry that if the DOL passes these regulations, such drastic financial changes will force companies to drop out of the program.

 

“I’ve had many employers just say they can’t afford to continue in the H-2B program if the new wage rates are set in place. Trainers they can’t afford to pay $16 an hour for something they have previously been paying for at $9 an hour,” Velie said. “The reason they’ve joined the program in the first place is that you can’t find enough Americans.

“Despite arguments that if pay is increased to $16 hourly enough Americans will come forward to fill these jobs trainers will not be able to stay in business paying these level wages, and the jury is still out whether Americans will really want to do these types of jobs no matter how high the salary is set.” he continued.

 

 

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